2019 RLLR 175

2019 RLLR 175 Citation: 2019 RLLR 175 Tribunal: Refugee Protection Division Date of Decision: June 20, 2019 Panel: Keith Brennenstuhl Counsel for the Claimant(s): Ilwad Jama Country: Egypt RPD Number: TB7-20808 Associated RPD Number(s): TB7-20869, TB7-20889, TB7-20890, TB7-20920 ATIP Number: A-2020-00518 ATIP Pages: 000588-000595 REASONS FOR DECISION INTRODUCTION [1] These are the reasons for the decision in the claims of XXXX XXXX XXXX XXXX (the “PC”), his wife, XXXX XXXX XXXX XXXX, and their three children, XXXX XXXX XXXX XXXX (age 13), XXXX XXXX XXXX XXXX (age 17) and XXXX XXXX XXXX XXXX (age 19), who claim to be citizens of Egypt, and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. [2] The PC was appointed the designated representative for his minor children. [3] The Minister intervened in the present case, raising the potential application of Article 1E of the Convention. The Minister submitted that the claimants were permanent residents of Italy and that the claimants were, therefore, excluded. [4] The application of Article 1E to this case was dealt with on a preliminary basis. I have determined below that Article 1E does not apply to the present case. [5] The claims have been decided without a hearing, according to the IRB’s Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division and paragraph 170(f) of the Act. ARTICLE 1E [6] I will summarize the evidence material to the question of whether Article 1E is applicable in this instance. XXXX and XXXX claim to be Egyptian citizens who moved to Italy in 1996, and 1997, respectively, and lived in the country for over fifteen years. Their children were all born in Italy. XXXX and his family were granted permanent residence status in Italy in 2003, when they obtained “Carta di Soggiorno“. [7] XXXX and his family left Italy in 2012, to return to Egypt. Since XXXX and his family have not resided in Italy and have not resided in the EU, with the exception of XXXX who went there for a six-month visit. Assessment of the Issue [8] Article 1E of the Refugee Convention reads: This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of nationality in that country. [9] That article is reflected in section 98 of IRPA: “A person referred to in section E or F article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.” [10] In the Zeng decision, the Federal Court of Appeal set out the test to be applied in article 1E exclusions. The Court stated, “Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded.”1 [11] In the present case, the PC indicated that he and his family were granted permanent residence status in Italy in 2003, when they obtained Carta di Soggioro”. I accept the PC’s testimony that he and his family enjoyed rights in Italy as permanent residents that were substantially similar to those enjoyed by Italian nationals. Specifically, the PC testified that his children were able to go to school, that his family members had access to health care and other social services, the adults were able to seek and obtain employment, and the family had, demonstrably, been able to travel freely in and out of Italy, including to Egypt. These hallmarks of status substantially similar to nationals are directly in line with the four criteria outlined in the Federal Court’s decision of Shamlou,2 namely, the right to return to the country of residence, the right to work freely without restrictions, the right to study and full access to social services in the country of residence. [12] While it is clear that the claimants have long resided in Italy, and actually held and enjoyed status there substantially similar to Italian nationals, the question is whether on the date of the hearing, the claimants still held this status. [13] According to the Response to Information Request3 a permanent resident of Italy will lose his status in the following cases: it has been acquired fraudulently;the state has ordered an expulsion measure against an applicant;the applicant no longer meets the requirements of the permit;the applicant has been absent from EU territory for 12 consecutive months;the applicant has acquired long-term resident status in another European Union member State”;the applicant has been absent from Italy for more than 6 years.[14] Counsel for the claimants provided a legal opinion by Sara Riboldi,4 a lawyer who is a Member of the Ontario Bar and a member of the Italian Bar of Milan in Italy, with offices in Toronto and Milan. She regularly advises Italian government institutions on matters involving Italy and Canada and, on a regular basis, advises individuals on citizenship and immigration issues in relation to Italian law. I found her opinion to be clear and persuasive. [15] It is clear from the evidence that the claimants have been absent from EU territory for more than 12 months. Ms. Riboldi writes: As explained above, subsection 7 of Article 9 of Law 286/1998 referred to provides revocation of a long-term residence permit on the grounds of the holder leaving the EU for the period of 12 consecutive months. Specifically, the Italian version of Law 286/1998 states that the Permit “è revocato in caso di assenza dal territorio dell’Unione per un period di dodici mesi consecutive” translated as “is” revoked if the holder leaves the EU for the period of 12 consecutive months. Therefore by operation of law the long-term permit is revoked when any conditions listed under Subsection 7 of the Law 286/ 1998 is found. Some police websites erroneously mention that the long-term permit “can” be revoked if someone leaves EU for more than 1 year. Please note that this is not the tenor of the law, which states that a Permit “is” revoked if the person leaves the EU for more than one year. [16] Ms. Riboldi continues: If XXXX and his family were to return to Italy and truthfully disclose that they left the country in 2012 and did not return by the end of 2013, the Italian immigration authorities will immediately conduct an investigation, which will result in a legal decision concerning whether they have forsaken their long-term permanent resident status there. NP When faced with the prospect of revocation, the holder of the permit can argue that the period of 12 consecutive months did not run in his/her case because he/she encountered exceptional circumstances that did not allow him or her to return to the EU within the prescribed time. The burden of proof is on the holder of the permit to show the “exceptional circumstances”. To reverse the revocation of a long-term residence permit, he would need to prove the existence of grave circumstances that would justify setting aside the revocation set by the law of the permit. The only exceptional circumstances considered in Italian case law on whether the 12 consecutive months did not run in a specific case are military reasons or very serious health issues. It is my understanding that neither of these justifications prevented XXXX and his family from returning to live in Italy. NP In sum, it is clear that: 1) XXXX and his family will not be issued a re-entry visa because they are no longer entitled to their Carta di Soggiorno; 2) because they cannot obtain valid documents they will be unable tore-enter Italy; 3) and because they have not been living in in Italy since 2012 and were absent from the EU for a period longer than 12 months, starting from 2012, it will be determined that they have lost their long-term permanent resident status. [17] Returning to Zeng, “Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded.” In this particular case the answer is clearly no. In my view, the claimants do not have status “substantially similar to nationals of Italy”. They no longer have the right to work freely without restrictions, the right to study and the right to access to social services and most importantly they have no right to return. [18] I conclude that Article 1E does not apply to the present case. THE CLAIMS Allegations [19] The allegations are fully set out in the narrative of the PC’s BOC as expanded on in the narrative of his eldest son’s BOC. In short, the PC was not reluctant to continue to express his support for President Morsi who was democratically elected but forced from office by the army and replaced by President Sisi. He would discuss his views with friends and family and post his views on social media. His home was raided by Internal Security who searched his home, took his laptop and forcibly removed him while blind-folded to an unknown location where he was roped to a chair, accused of being a member of the Muslim Brotherhood, and aggressively interrogated until the following day. Two months later, he was summoned to the police station. He learned through his lawyer that the police had started an investigation against him based on a business competitor’s accusation that he was a member of the Muslim Brotherhood and a supporter of Morsi. His lawyer advised him not to report to the police and leave the country. Determination [20] For the following reasons, I find that the claimants are Convention refugees. Analysis Identity [21] Certified true copies of the claimants’ current Egyptian passports were included in the referral. This is sufficient to establish the claimants’ personal identities as nationals of Egypt. Nexus [22] I find that a nexus to section 96 has been established by reason of political opinion in the case of the PC, and membership in a particular social group, namely, family members of a political dissident, in the case of the PC’s wife and children. Credibility [23] Regarding the credibility of the claimants, I have reviewed the claimants’ BOCs, the claimants’ intake forms, the personal documentation provided in support of the claim, as well as their country condition documentation. I have also reviewed country condition documentation contained in the National Documentation Package (NDP) for Egypt (June 29, 2018). The claimants’ evidence is not internally inconsistent, inherently implausible, or contradicted by documentary evidence. Furthermore, the allegations are corroborated by personal documents that I do not have sufficient reason to discount, including a Notice to Appear from Sharqia police to the PC, and a copy of a police complaint against the PC accusing him of being a member of the Muslim Brotherhood. Objective basis of future risk [24] Based on the credibility of the allegations and the documentary evidence, I find that claimants face a future risk of detention, physical abuse and torture at the hands of the Egyptian authorities owing to the PC’s support of Morsi and the perception that he is a member of the Muslim Brotherhood. [25] The documentary evidence5 before me on country conditions confirms that the government of Egypt severely represses and persecutes political opposition by means of arrest, long term detention, unfair mass trials, life sentencing and death sentencing, physical abuse, torture and disappearances. I am, therefore, satisfied that the claimants face a serious risk of serious human rights abuse by Egyptian security forces and the courts. Nature of Harm [26] In my view, the harm the claimants face if they were to return to Egypt amounts to persecution. State protection [27] As the agent of persecution is Egyptian governmental authorities, I find it would be objectively unreasonable for the claimants to seek the protection of the Egyptian government in light of the claimants’ particular circumstances. Internal flight alternative [28] On the evidence before me, I find that there is a serious possibility of persecution throughout Egypt, given the objective evidence that the authorities operate similarly throughout the country. Therefore, viable internal flight alternatives are not available to these claimants. CONCLUSION [29] Based on the analysis above, I conclude that the claimants are Convention refugees. Accordingly, I accept their claims. (signed) KEITH BRENNENSTUHL June 20, 2019 1 Zeng, Guanqiu v. M.C.I. (F.C.A., no. A-275-09), Noël, Layden-Stevenson, Stratas, May 10, 2010, 2010 FCA 118. Reported: Zeng v. Canada (Minister of Citizenship and Immigration), [2011] 4 F.C.R. 3 (F.C.A.) 2 Shamlou, Pasha v. MCI (F.C.T.D., no. IMM-4967-94), Teitelbaum, November 15, 1995. Reported: Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.). 3 Exhibit 15, National Documentation Package for Italy (May 31, 2018), Item 3.3. 4 Exhibit 16, Legal opinion of Sara Riboldi, dated September 19, 2018. 5 Exhibit 7, National Documentation Package (NDP) for Egypt (June 29, 2018), Tabs 1, 2 & 4; Exhibits 10-12, Claimants’ country conditions packages.